In This Episode
Former President Donald Trump has been indicted for a third time– this time in a Washington, DC, case about attempts to overturn the 2020 election. Kate, Melissa, and Leah huddle to break down the charges, the people involved, and what happens next.
Melissa Murray Hey, guys. I just got back from the SAG Harbor Carnival. What’d I miss? Anything Big?
Kate Shaw Quiet evening.
Leah Litman Sooooo. Nothing big. Which is why we’re doing a special emergency episode.
Melissa Murray I was wondering about that. What happened?
Leah Litman It’s about the SAG carnival. Is that where you were?
Melissa Murray I have to say, it was super fun. I saw Rachel Zoe from Nicole Richie, Paris Hilton, The Simple Life. Remember that whole shtick? Remember her?
Kate Shaw I remember when you told me 2 minutes ago who that was. But no.
Melissa Murray It’s not for you, Kate.
Kate Shaw That is, in fact, not the reason. We are convening an emergency episode of Strict Scrutiny.
Melissa Murray It’s not about Rachel Zoe?
Kate Shaw It’s not. If you guys want to do a special episode about her after I peel off, you have my blessing.
Melissa Murray She would indict you for crimes of fashion.
Kate Shaw Oh, I would deserve that. But Melissa, Queen of the segue. That’s pretty good, because we are, in fact, here for a special emergency episode to break down former President Trump’s latest indictment, this time for his efforts to overturn the results of the 2020 election. And it can kind of feel like these indictments are so numerous at this point that they don’t, like, necessarily warrant an emergency episode. We kind of debated whether we were going to do this, but like where we landed is this is not normal. People like nothing alleged in this indictment, which we will talk about, is normal. It is not normal to have a former president and leading presidential contender indicted triply and probably on his way to Moore. And we kind of don’t want to lose sight of that and will be biglier probably before the month is up. But anyway, we are here in your ears and recording past Leah’s bedtime for that reason. We’re your hosts I’m Kate Shaw.
Leah Litman I’m Leah Littman, who’s supposed to be in bed.
Melissa Murray I’m Melissa Murray. It’s dinner time.
Leah Litman I mean, I need my beauty rest before the final US Show of the Errors tour. It’s important.
Melissa Murray How do you show numbers compared to Donald Trump’s indictment numbers? Leah? Are they about the same?
Leah Litman Ummmmm TBD.
Melissa Murray That’s true, he may not be done yet.
Kate Shaw See how many more shows you make it to and how many more indictments.
Leah Litman Right, Exactly. Exactly. Like thus far, once this next show happens, I will be at more shows than the number of indictments. But given that it doesn’t seem like we’re yet at the ceiling of the number of indictments.
Kate Shaw Okay. So right now it’s tied, is what you’re saying.
Leah Litman But I’m gonna pulll ahead.
Kate Shaw So as we have obviously mentioned. But just in case folks have started to lose track of it, this is not the first indictment. It will almost certainly not be the last indictment. But it does feel like the most consequential to date. This indictment is about a direct assault on American democracy and kind of whatever happens with these charges, it does feel like bringing them is an attempt to impose some meaningful accountability. And just as a reminder, in terms of the other charges, Trump is already facing 37 federal felony counts in the Mar a Lago documents case. Maybe it’s 38 now that there’s been the addition with like the possible videotaped.
Melissa Murray Superceeding indictments.
Kate Shaw And might it be up to 38. He’s also facing 34 felony counts in New York state court for falsifying business records in conjunction with hush money payments to Stormy Daniels. Those two cases are both set for trial one in March, one in May of 2024, if those dates hold. So it’s going to be a busy spring for the likely Republican candidate for president.
Leah Litman In light of this. That is all these indictments and all of these charges. I wanted to revisit an oldie but goodie, and that is, of course, Ginni Thomas text messages. You might recall that two days after the 2020 election, Ginni texted Mark Meadows, the chief of staff, to President Trump, quote, Biden, crime, family and ballot fraud, Coconspirators, parentheses, Elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc. and parentheses are being arrested and detained for ballot fraud right now and over coming days and will be living in barges off Gitmo to face military tribunals for sedition. I hope this is true.
Kate Shaw You should say that Lessons was a quote. This was not Leah editorializing.
Leah Litman No yeah, that’s literally what she said. And that was that. Those are Ginni’s texts.
Kate Shaw So this is not in the indictment, we should say. And and yet it does set the scene like this is the milieu out of which the events detailed in the indictment arose. And obviously that’s the world that Ginni Thomas lives in. I think it’s they’re connected.
Leah Litman So maybe we can talk some big picture thoughts about the indictment, explain the charges, and also talk briefly about what will happen next in the case. But we don’t want you to think not everything is coming up. Trump just because he was indicted a third time, so wanted to know that on Tuesday before 5 p.m., he posted on Social that he was going to be indicted at 5 p.m.. And sure enough, he was. So something came up.
Kate Shaw I don’t know. I think it was like 540. It was definitely post five.
Leah Litman Okay, like a little after five. But within the hour, Kate, come on, .
Kate Shaw That was a long 40 minutes.
Melissa Murray Kate you always run 5 minutes late.
Kate Shaw It’s true but this was like 40 minutes.
Melissa Murray Give this man some grace.
Leah Litman He was indicted at 5 p.m. Kate Shaw time.
Kate Shaw That’s true. That’s true.
Melissa Murray Yes. KST. Okay, but but back to the indictment. The overarching basis for the charges. And I guess I just skimmed this coming back from the SAG Harbor Carnival. But the overarching basis for the charges here are Donald Trump’s efforts to overturn the legitimate results of the 2020 election results that defended Trump and his apparently, as of now, unindicted coconspirators are alleged to have known were actually legitimate. So they were acting like this was not legitimate when in fact everyone knew it was legitimate.
Kate Shaw Including them. And the indictment charges conspiracies under three separate federal statutes. I’ll just briefly mention them. The first 18 U.S.C. Section 371 is conspiracy to defraud the government, basically obstructing a governmental function by deceitful or dishonest means. The second is 18 U.S.C. Section 1512 C to obstruction of an official proceeding. This is a charge that’s been used extensively against lower level January six defendants, and it’s basically about disrupting Congress, the certification of the Electoral College votes, and the third 18 U.S.C. Section 241, a conspiracy against writes makes it a crime for an individual to conspire to injure, oppress, press, threaten or intimidate any person in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws. And here, the right being denied is the right of citizens in states to vote and to have their vote counted.
Melissa Murray So this was the count that in the target letter got the most attention because it is part of this post-Civil War reconstruction era. KKK, Ku Klux Klan statute that was intended to secure the civil rights of formerly enslaved people against the anticipated encroachments of Southerners. And again, I think this is really meaningful. It’s deeply symbolic. I think about Ruby Freeman and her daughter Seamus, who were the poll workers in Georgia who said they their lives are basically turned upside down by Donald Trump’s claims that this was an illegitimately conducted election and that they had done wrong during the conduct of that election. So, I mean, this is, I think, a very deeply meaningful charge in a lot of different ways.
Kate Shaw There were two other charges that the January six committee included in its referral to the Department of Justice. One was inciting or aiding an insurrection, and the other was conspiracy to make a false statement. Interestingly, Jack Smit, the prosecutor here, did not charge either of those. And the first in particular, there was a lot of kind of discussion about how difficult it might be to make out an incitement or insurrection charge. And it is interesting that that although that is not charged outright, all of the conduct detailed and we’ll talk about just how much detail there is in the indictment is really about insurrectionary conduct. And it’s just offered in support of other probably more straightforward charges. So I think that was an interesting charging decision.
Leah Litman Yeah, I mean, maybe no charged insurrection, just a genius erection. But I mean, I think you’re right, Kate. Like on the broader point, right, what this describes is an attack on democracy, sedition, treason, conspiracy. Right. Like maybe not formally amounting to like those legal charges, but it just so happened that like what they were doing morally and to our democracy happened to violate a bunch of other federal laws as well. So, you know, obstructing an official act of the United States along the way towards treason or whatever you want to describe it in a kind of colloquial sense. But like the Mar a Lago documents indictment, this, too, is a speaking indictment in the sense that it lays out a case and also puts it together, a narrative form combined with specific evidence. So just to read from the second paragraph, quote, Despite having lost, the defendant was determined to remain in power. So for more than two months following Election Day, the defendant spread lies that there had been outcome determined a fraud in the election that he had actually won. These claims were false and the defendant knew that they were false. But the defendant repeated and widely disseminated them anyway to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
Melissa Murray The indictment documents efforts to target seven states and to stop those seven states from certifying the results of the election as contemplated by the Electoral Count Act and the Constitution. It also discusses the efforts to stop the VP, Mike Pence and Congress from doing the same on January six.
Leah Litman So what the indictment describes, as we were kind of generally alluding to, is a plot to overturn the will of the people, to throw out millions of votes, deny many people their rights to vote, and more generally, this huge threat to democracy that, you know, Melissa, you were noting that charging under the general deprivation of rights statute is significant because, you know, the allegations here really call to mind previous incidents in history, whether that’s succession, Jim Crow, redemption and whatnot that also were like full frontal attacks on our democracy.
Melissa Murray Let’s play a clip from special Counsel Jack Smith’s press conference where he discussed the charges and the road for.
Clip The attack on our nation’s capital on January 6th, 2021, was an unprecedented assault on the seat of American democracy described in the indictment. It was fueled by lies, lies by the defendant, targeted at obstructing a bedrock function of the U.S. government, a nation’s process of collecting, counting and certifying the results of the presidential election. The men and women of law enforcement who defended the U.S. Capitol on January 6th are heroes. They are patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that defined the United States.
Kate Shaw Having played that, let’s stop and talk Jack Smith for just a minute. You know, I had the same thought this time as I did last time. You know, he gave a very similar also very short press conference after the Mar-A-Lago indictment. This is not a guy who craves the spotlight. He spoke for literally 3 minutes this time and might have been a bit longer in the Mar-A-Lago charge. But he really seemed, if you watched him to be up there because he thought he had to be, not because he wanted to be. And it was like this is literally the anti-Donald Trump. This person really abhors the spotlight, but he’s been thrust into it. And I think he thought correctly that he needed to actually take the podium and say some things to the American people. But it was just like really a few things. And the other thing I just couldn’t stop thinking about was his background. And I think it’s important to remember that prosecutor worship is like really dangerous. And and I think Jack Smith or any other prosecutor can alone save American democracy. But I do think this guy does seem like a badass and not likely to be cowed by Trump or like whatever Trump might do in response to this. I think he was a war crimes prosecutor in The Hague. He indicted the then sitting president of Kosovo for war crimes, said then a sitting president allegedly committed in the nineties, including murder and torture. And there was a lot of pressure brought to bear on him then, and it didn’t seem to have any effect. And I just don’t see him as being easily cowed. And so he does really feel like the right person for this moment.
Melissa Murray I think a big part of why he seems like a badass is that he basically looks like Rasputin.
Kate Shaw It’s a short beard. That’s not Rasputin.
Melissa Murray I mean, I don’t know.
Kate Shaw He just looks like he’s been too busy to shave to me.
Melissa Murray True. Let’s also hear a little bit from Attorney General Merrick Garland describing the lead up to the indictment.
Clip Mr. Smith and his team of experienced, principled career agents and prosecutors have followed the facts and the law wherever they lead.
Leah Litman Right now, Donald Trump is the only one charged in this indictment. This indictment is United States versus Donald Trump. However, there are several unindicted unnamed coconspirators, specifically six of them. It’s not clear if they will be indicted. And it is, you know, the Department of Justice, this practice not to name unindicted coconspirators, but in this case, you can kind of tell who some of them are name names. So. Oh, I will ask. Coconspirator. Number one is an attorney who was willing to spread knowingly false claims. His name is.
Melissa Murray Ummm I guess Rudy Giuliani.
Leah Litman Yeah, I think it rhymes with Rudy Giuliani. Whether it’s Rudy Giuliani himself, I guess we’ll see. But just based on some of the statements in the indictment, those are things that he has said. The second unindicted coconspirator is another attorney who devised and attempted to implement a strategy to leverage the vice president’s ceremonial role in this entire scheme. My guess is.
Melissa Murray I know it I know it John Eastman. Who is John Eastman.
Kate Shaw Ding ding. Definitely. Alright Jeopardy champion coming out.
Melissa Murray I love indictment jeopardy!
Kate Shaw Exactly.
Leah Litman Exactly. We have unindicted coconspirator Number three, also an attorney who made unfounded claims of election fraud they privately acknowledge were unfounded. Ding, ding, ding. Melissa.
Melissa Murray Who is Sidney Powell?
Kate Shaw Which you know because even Trump was describing her allegations as crazy, but nevertheless is to need to report them. All of this is in the indictment.
Leah Litman Okay. So Melissa seems like she’s three for three. Kate, feel free to jump in.
Kate Shaw I’m jumping in. I got four.
Leah Litman Any of these. Okay. Number four, someone at the Department of Justice involved in civil matters who tried to open sham election criminal investigation.
Kate Shaw That was definitely Geoffrey Clark. That was an easy one. He.
Melissa Murray You did not phrase your answer in the form of a question.
Kate Shaw Who is who is.
Melissa Murray I will steal who is Geoffrey Clark?
Kate Shaw I didn’t know the Jeopardy rules applied. Yes, definitely Geoffrey Clark.
Leah Litman Number five is another attorney who assisted in devising and attempting to implement the fraudulent slate of electors. Less clear who this one this is.
Melissa Murray This is like a double jeopardy. Like like a daily double. This is a really tough one.
Kate Shaw I think who is Kenneth Cheeseborough?
Melissa Murray I think you might be right. But how would how much would you have wagered?
Kate Shaw I probably had nothing.
Leah Litman She only had one one answer to wager.
Kate Shaw I didn’t have a lot to work with, but I think I think I think I doubled it.
Leah Litman And number six is a political consultant who helped implement the scheme.
Kate Shaw No idea.
Melissa Murray Could this be. What was his name is?
Leah Litman I truly don’t know here. So I am unable to award points.
Melissa Murray I mean, like there basically so many possibilities floating around. What is a political consultant? Just like, you know, what is a stylist to the stars.
Kate Shaw What’s pretty wild? Is this the only non-lawyer as far as we know that the five of six coconspirators..
Leah Litman Yeah, five out of the six coconspirators here are Republican lawyers. And I wonder if Sam Alito.
Melissa Murray Not a great day for the profession.
Leah Litman Not a great day. I do wonder if Sam Alito read this and thought this is what the organized bar should be doing, leaping to the president’s defense when he wants to overturn an election. With that general outline, maybe we can go through some of the notable specific allegations in the indictment, because although this has been a widely reported on conspiracy and investigated conspiracy, I think we did learn some new things from the indictment. But we also wanted to highlight just some others as well. So one is apparently part of this conspiracy involved proposing using the military to suppress protests against the coup. So after a deputy White House counsel allegedly told coconspirator number four, there had not been outcome determinative fraud and that there would be riots in every major city in the United States if Trump nonetheless remained in office. Coconspirator four responded, quote, Well, that’s why there’s an Insurrection Act. That is literally the law that would ostensibly the president be contemplating using the military to send out to suppress protests.
Melissa Murray And the coconspirators apparently understood and expected that there was a risk of violence based on what they were doing. So the indictment notes that also on January 4th, when coconspirator number two acknowledged to the defendant’s senior advisor that no court would support his proposal, the senior advisor told Coconspirator two, You’re going to cause riots in the streets and coconspirator. Two responded that there had previously been point in the nation’s history where violence was necessary to protect the republic. Again, so many historians in this White House insanity. After that conversation, the senior advisor notified the defendant that Coconspirator two had conceded that his plan was, quote, not going to work.
Kate Shaw We got a snapshot into Christmas and the Trump White House backed up like a week. So on December 25th, when the vice president called the defendant to wish him a merry Christmas, the indictment alleges that the defendant quickly turned the conversation to January 6th and his request that the vice president reject electoral votes that day. Vice president pushed back, telling the defendant as the vice president already had in previous conversations, You know, I don’t think I have the authority to change the outcome. And indictment editorialize is at one point the vice president was in a position to potentially really benefit from signing on to this plan like he would have gotten to keep his job and still, even with self-interest, pointing in that direction. And Mike Pence wanted no part of this scheme.
Melissa Murray I was actually hoping that this part of the indictment, discussing Christmas would have some choice quotes from Melania about fucking Christmas and how much she hated decorating the White House and like that her whole like Apocalypse Now White House decorating scheme was like not going to plan, but no.
Kate Shaw Saving that for the memoir.
Melissa Murray Phone call. Yeah, it was very like, you know, holiday calls from Mike Pence to his superior.
Kate Shaw There’s one. Yes, there was one more passage in the indictment from earlier in the period between the election and January six. So let me just read an excerpt from a paragraph about a December 8th email. So on December 8th, I’m reading now, the senior campaign advisor wrote in an email, When our research and campaign legal team can’t back up any of the claims made by our elite Strikeforce legal team, that whole phrase is capitalized, which I love. You can see why we’re over 32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership that’s in writing.
Melissa Murray Okay that’s a t-shirt.
Leah Litman Conspiracy should beam down from the mother ship.
Melissa Murray I think the merch line is elite strike force legal team and on the back is the quote.
Kate Shaw The conspiracy should beam down.
Melissa Murray Conspiracy should beam down from the mothership.
Kate Shaw That’s pretty good.
Leah Litman I mean.
Melissa Murray Put it on a T-shirt. Print it.
Leah Litman I might start referring to the Supreme Court as the elite Strike Force legal team and so Justice Thomas and Justice Alito’s writings as the conspiracy should said beam down from the mothership. So just warning that might be the new Fantastico anyways, but it’s emails like this that are part of the reason why you don’t take notes on a criminal conspiracy. I feel like we have said this before. Stringer Bell said it many years ago. I don’t know why these people won’t listen to him. There was also an email from an Arizona lawyer summarizing a call with one of the unindicted coconspirators. That little. Really says, quote, kind of wild slash creative that’s describing the scheme. And the email continues.
Melissa Murray And we’re just kind of wild slash creative is what your child’s art teacher says about his tie dye project. Like, this is not a legal strategy.
Leah Litman And he continues, quote, We would just be sending in, quote, fake electoral votes to Pence so that, quote, someone in Congress can make an objection when they start counting votes and start arguing that the, quote, fake votes should be counted. It’s like he just put it in an email.
Melissa Murray You taking notes on a motherfucking criminal conspiracy?
Leah Litman And you’re like, Yes.
Melissa Murray Yeah. Like Idris Elba did it so much better. So a major issue that has been discussed as long as we have been talking about the prospect of these indictments is the question of mental state. And that really goes to the more granular question of did Donald Trump actually know that he lost? And in knowing that he lost, that he was throwing out legitimate votes with these schemes? Well, the indictment suggests that there is considerable evidence that, in fact, he did know that he lost and that his actions would result in the disenfranchisement of a substantial number of voters. So, example one Trump instructing his acting attorney general in December 2020 to, quote just say that the election was corrupt and leave the rest to me and the Republican congressman end quote, not a great look for the Republican caucus. I have to say. Another notable quote Trump told Pence that he was, quote unquote, too honest for this conspiracy shit beamed down from the mothership. The indictment also ticks through all of the federal and state officials who told Donald Trump the results of the election were legitimate and that there was nothing approaching determinative fraud. So his vice president, Mike Pence, told him this, that he had seen no evidence of outcome determinative fraud. Senior leaders of the Department of Justice, who were appointed by the defendant said that various allegations of fraud were entirely unsupported. The director of national intelligence disabuse Donald Trump that any foreign interference would have changed the outcome here. The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, CSA, joined multi-agent statements that there was no evidence that any voting system had been compromised and that the 2020 election had been the most secure in history. And the CSA director announced publicly that any computer based election fraud allegations were unsubstantiated. And then Donald Trump proceeded to fire that individual. So again, a total shit show. Senior White House lawyers said the same thing and told Donald Trump that his presidency would be over in January 2021. Senior staffers on his reelection campaign said on November 7th that he had only a 5 to 10% chance of winning, which would only happen if he prevailed in ongoing vote counts in Arizona, Georgia and Wisconsin. Within a week, he lost Arizona State legislators and officials, including people who had voted for him, said that these claims of fraud were unsubstantiated and false. And of course, as we have discussed on this podcast, state and federal courts rejected every single Trump campaign lawsuit dealing with the election and these allegations of fraud. Although in one case in Wisconsin, the outcome was perhaps a little too close for comfort. So again, we didn’t love the quote unquote neutral arbiter is responsible for ensuring a fair and even minded administration of elections laws. Description of the courts. But I guess we can probably take it in this circumstance.
Leah Litman Just again, back to the oldie but goodie. I wanted to contrast and compare these statements of what various federal and state officials were saying to Trump with what Ginni Thomas was saying to Mark Meadows, quote, Do not concede. She wrote, quote, It takes time for the Army who is gathering for his back.
Kate Shaw Again to not sort of to the point of not getting inured to any of this. Like I just we have we have read these Ginni text before. I think maybe we need to just quarterly remind everyone that like that is the reality in which the kind of leading intellectual light of the conservatives on the Supreme Court resides. That is his home. That is his household.
Melissa Murray That’s his best friend.
Leah Litman Yes.
Melissa Murray That’s his best friend.
Leah Litman Yes.
Kate Shaw And so it’s this is not these are not fringe players, right. Like, even if Donald Trump does not manage to claw his way back to the White House in 2024, even if all the people around him never again hold positions of political power like Cheney, Thomas was all in on this plan as much or more as anyone described in this indictment. And that Thomas is. Going to stay in the position that he is in, and so that endures.
Melissa Murray I actually thought you were going to say something different. I mean, you’re making a really good point. I actually just thought like this is going back to the ethics. Like it’s absolutely batshit that the spouse of a sitting Supreme Court justice is even doing this. I mean, when you think about Cecilia Marshall, like, oh, I don’t go to parties anymore because my husband’s a Supreme Court justice. Like, it almost be like if she was like, you know, I don’t go to insurrections anymore because my husband’s it’s just like, like I stopped my insurrection thing, like, because my husband became a justice of the Supreme Court. And Ginni Thomas can’t stop that. She can’t stop the insurrection part.
Leah Litman Can’t stop won’t stop.
Kate Shaw And nothing in the Constitution empowers anyone to make her.
Melissa Murray I mean, she’s like, curvature, bitches. I refuse to be brought down.
Kate Shaw Okay. So we have walked through the charges in general terms, some of the highlights from the indictment. Maybe let’s step back for a minute and just kind of situate these charges in the context of the larger political moment and also the other charges that have already been brought against the former president.
Melissa Murray Now, people have pooh poohed some of these previous indictments as being too small. And I’m thinking specifically of the criticisms lodged against Manhattan D.A. Alvin Bragg for his indictment. There’s lots you can say about whether or not you should be going after Trump for the big stuff. And, you know, will any of this address the concerns that are raised by the various departures from normalcy that his presidency represented? But I think you can’t level any of those kinds of critiques that this indictment like this is a big meaty indictment where the alleged crime matches in every way the threat to the republic and the democracy. And again, this is no shade to the Manhattan D.A. indictment. I mean, I think people should be accountable for the wrongs that they do. But I mean, this one is like it’s a big indictment because the shit underlying it was huge.
Leah Litman It is literally an assault on democracy, an attempt to throw out Democratically cast votes. You know, but I think the reality is, is that, like big cases often present like new facts. Right. And like slightly different legal theories. And of course, there is a desire to kind of like simplify this to its core as a threat to democracy. But as we were saying, like the threat to our democracy is basically being measured against what these federal criminal laws say. And like those have distinct, you know, like terms of art and legal questions that will be resolved in these proceedings. And a part of me is just worried. You know, I was mentioning earlier how what this indictment describes brings to mind, I think, like the redemption era’s threats of violence against multiracial democracy and black voters. And I worry that like we could at the end of the day, see some federal court, maybe the Supreme Court, reaching a decision like they did during the redemption era and narrowing the reach.
Melissa Murray Not with Justice Thomas on the bench. Because you know who always rehashes that redemption era history, Leah? It’s Justice Clarence Thomas. He Told us about Cruickshank. He told us about the Hamburg massacre. And I’m sure when this case comes before the court, he’s going to be there and he’s going to say this was a threat to the republic. See Cruickshank, QED.
Leah Litman And just to provide some context of redemption is the period after Reconstruction that was really the downfall of Reconstruction and the slide into Jim Crow segregation and violent repression of multiracial democracy. And Cruickshank is a Supreme Court decision in which the Supreme Court narrowly interpreted federal laws passed during Reconstruction to not prohibit mob violence against, you know, black citizens who were protesting, you know, the Southern Democrats retake over of the former Confederacy.
Melissa Murray And Clarence Thomas has criticized both redemption and the Cruickshank decision, but only insofar as it limited the opportunity for newly freed black men to bear arms. So so we’re being super facetious here. He’s not going to do anything to uphold this indictment or the underlying legal proceedings that occurred.
Kate Shaw I mean, it’s just important to raise the possibility that these are statutes that a determined Supreme Court could find don’t cover this conduct. These are statutes that have kind of fraud. At least two of them are really kind of fraud statutes of a particular variety. And as we’ve talked about a lot on the show, this is a Supreme Court that has really narrowed almost to the point of rendering inoperable a lot of federal fraud statutes. And it does not at all seem unthinkable that the Supreme Court would be receptive to such an argument by the former president if this case actually ever ends up resulting in by, say, a conviction that he appeals all that Supreme Court. But yeah, you could see that happening. And I think there is reason for concern.
Melissa Murray I mean, every election should come with an opportunity to overthrow the government. That’s just politics. Percoco
Leah Litman But look, we already see some early Republican conservative commentators saying, you know, this indictment criminalizes protected political speech. And of course, that is the theory that the court has used to dismantle campaign finance laws that are designed to prevent and reduce corruption in the governmental system. And I just think it’s like a non-zero risk slash concern. And I think it is very good. We are seeing some accountability for the threats to democracy. I think the worst thing you can do for democracy is just like not attempt to have any measure of accountability when people are. Are literally trying to nuke the democracy itself. But at the end of the day, like criminal law prosecutions, like they are not going to fix this, even though they might be in some cases necessary.
Kate Shaw Necessary, not sufficient, I think is right. And also, just to kind of go back to yes, I think these kind of First Amendment concerns are well-founded. And Jack Smith was obviously very aware of them because page two of the indictment has this long paragraph that’s a little over the top. But just like Luxuriates in this idea that obviously the defendant had a right to speak publicly about the election and even to falsely claim that there had been outcome determinative. I’m not sure I totally agree with that. But it is meant to anticipate and respond to this objection. But obviously, we’re going to see it regardless.
Leah Litman Right. Like he can say all of these things, but what he can’t do is try to prevent the certification of votes or throw out legitimately cast votes.
Kate Shaw One other question I wanted to post you guys, which is that do you think this indictment would have happened without the January 6th committee?
Melissa Murray I don’t know, because, again, as I said, Jack Smith is kind of a Rasputin ass badass. Like, who knows what he would have done if left to his own devices. But I do think that the January six committee was playing to two audiences. Obviously the Department of Justice, but also to the American public. So I think one way in which you could interpret the events of last summer when we well, not everyone, but a lot of people really watched this and they really orchestrated this in a way to make it watchable for the public, was that it sort of soften the public to the idea that something was coming and then indeed something should come because this was so fucking bonkers that it demanded accountability. And I think for that reason you have to give them some credit in the run up to this, because I don’t think the public would have been ready for the prospect of indicting a former president for charges of this magnitude absent their intervention.
Kate Shaw And I don’t know if Merrick Garland was ready because he didn’t appoint Jack Smith until after the hearings last summer. And so I kind of think they were required to get. Now, maybe that’s that means that there’s a yearlong delay that is on Merrick Garland, because we are closer to this next election than would be ideal with these charges being brought now. But yeah, it was post the hearings last summer that Garland did appoint Jack Smith and actually like he’s moved pretty quickly since that November appointment.
Leah Litman I wanted to read a Kyle Bragg-esque quote from former D.C. Metropolitan Police Department officer Mike Fanone, who testified before the January six committee. He apparently gave a statement to NBC, quote, Donald Trump spent his entire lifetime fucking around and he’s about to find out. I’d like to think that in some small way I played a part in all this.
Leah Litman Mike Fanone, come on the pod.
Melissa Murray Mike Fanone. It’s fuck around and find out season.
Leah Litman Exactly. Um so we mentioned we were. Just know quickly things to happen next. This case has reportedly been assigned to Judge Tanya Chutkan, who is one of the federal judges in the District of Columbia. She was appointed by President Obama, and I think she is a very well-regarded judge. She has overseen some of the cases involving January six, where I think she has been imposing some sentences on the higher end compared to, say, some of the Trump appointed district judges. And we will kind of see how that plays out. The next appearance for Donald Trump will be later this week. And maybe one final question to you all. What do you think Ginni’s text messages say right now?
Kate Shaw Hunter’s still going down.
Melissa Murray I mean, look. That’s the thing. She’s, like, not even concerned about that. She’s too busy worried about Hunter Biden’s laptop. I mean.
Leah Litman Yes. No. Okay.
Kate Shaw All right. Should we leave it there?
Leah Litman Ughh
Melissa Murray Yeah, I just had a fried Oreo. It was like.
Leah Litman Oh, my God, delicious.
Melissa Murray I’d never had one. Amazing, right?
Kate Shaw Do they travel well. Oh, you brought them back from the fair? So it is like five minutes ago. I highly doubt they’re delicious like day two.
Melissa Murray This is like an hour ago we bought them. They were really good. I mean, I think you basically can deep fry anything. It’d be delicious. Correct. Let’s deep fry this indictments. Yeah.
Kate Shaw The last one we unboxed, this one we will deep fry and snack on. All right, With that, we go get some sleep. I hope you get hits different in the set in L.A..
Leah Litman A girl can dream.
Kate Shaw Dream big.
Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. We have audio engineering by Kyle Seglin. Music by Eddie Cooper and production support from Michael Martinez and Ari Schwartz and digital support from Amelia Montooth. Indictment support from Jack Smith.
Leah Litman And a constant stream of content from Donald Trump, Samuel Alito, Clarence and Ginni Thomas, Leonard Leo and so many others.
Kate Shaw Oh and snacks supplied by Melissa’s offspring to fuel her rage throughout the last hour.Rage, Joy whatever.
Melissa Murray I’m in a great mood like, I mean, I. I literally I didn’t even know that this happened cause I didn’t have cell service. I was like, what’s going on? Every everyone is so happy because no one had cell service. It was amazing.